Can I Sue My Midwife for a Birth Injury?

More and more births in the United States are being attended by midwives; from 2012 to 2022, the percentage of midwife-attended births increased from about 7.9% to approximately 10.9%. There are a variety of reasons for the increase. Many people are interested in a more personalized, low-intervention pregnancy and birth, often in a less clinical setting like a birthing center or their own home. In addition to that trend, there are nationwide shortages of medical professionals including obstetricians, especially in rural areas. That shortage also leads many families to work with a midwife.

For many people, the increase in midwife-attended births is a welcome development. Most of the time, these births provide a positive experience and a joyful outcome. But when something goes wrong, a midwife causing a birth injury, just like a doctor, can be held liable for medical malpractice.

What is a Midwife?

A midwife is a healthcare provider whose focus is pregnancy, childbirth, newborn care, and postpartum health. Midwives tend to be more supportive of natural approaches to pregnancy and birth, with a more holistic focus on the well-being of the mother and baby. Though typically not physicians, midwives often work alongside OB/GYNs in hospitals as part of a care team. They may also work in birthing centers or independently.

There are two primary categories of midwives: nurse-midwives, who are registered nurses with advanced training in midwifery, and “direct-entry” midwives who are trained in midwifery, often through apprenticeships or specialized programs, and who are not registered nurses.

Are Midwives Licensed?

In Oregon and Washington, midwives are usually licensed. Nurse-midwives must receive certification as a Certified Nurse-Midwife (CNM); direct-entry midwives may become a Certified Professional Midwife (CPM).

In Washington, all practitioners must be licensed, either as direct-entry midwives or as nurse-midwives certified under the Washington Board of Nursing. In Oregon, unlicensed direct-entry midwives may practice as a “traditional midwife” so long as they do not advertise as a midwife; don’t administer legend (prescription) drugs or use devices that require a health professional license; and provide written disclosure of their limitations to clients.

What Are the Risks of Working with a Midwife?

Working with a well-trained midwife, like any capable health care provider, is generally safe. Your focus in evaluating a provider should be less on their title and more on their training, licensure, scope of practice, and the setting in which they work.

Some potential risks include:

• A delayed recognition of complications such as fetal distress, hemorrhage, or shoulder dystocia
• A midwife may have a limited ability to intervene if she cannot administer certain treatments or order advanced diagnostics, especially outside a hospital
• If a person in labor needs to be transferred to a hospital, outcomes may be worse if the emergency transfer is delayed or poorly coordinated
• Free-standing birth centers and home environments lack the resources hospitals have, such as surgical teams, blood banks, and NICUs

Unsurprisingly, midwifery is better suited to healthy, low-risk pregnancies. But even in those situations, there is no guarantee that malpractice will not happen.

What Birth Injuries Can Midwife Malpractice Cause or Worsen?

Malpractice by a midwife can lead to the same types of birth injuries often seen in obstetric malpractice, including:

• Hypoxic ischemic encephalopathy (HIE), also known as birth asphyxia
• Cerebral palsy
• Brachial plexus injuries such as Erb’s palsy and Klumpke’s palsy
• Intracranial hemorrhage
• Skull fractures
• Neonatal sepsis, meningitis, and other infection-related birth injuries
• Compressed umbilical cord injuries

If your child suffered one of these serious injuries, they may have incurred thousands of dollars in avoidable medical bills and could be facing a lifetime of heightened needs. Suing a midwife for medical malpractice can’t take away what happened to your baby, but it may make it possible for them to get the care they need going forward.

Suing a Midwife for a Birth Injury

If you want to sue a midwife for a birth injury your child suffered, you will need to prove the same elements as in any medical malpractice case:

• That the midwife had a duty of care
• That she breached the standard of care
• That the breach caused the injury
• That the injury gave rise to damages, such as past and future medical costs and pain and suffering.

These cases tend to be resource-intensive and involve many procedural hurdles. Failure to clear any one of them can scuttle your case before it begins. In short, suing a midwife for a birth injury is not a do-it-yourself project. A medical malpractice attorney can guide you through the confidence, offering clarity and sensitivity, and advocate for you and your child every step of the way.

Work with an Experienced Birth Injury Attorney

The decision to sue a midwife for a birth injury is a difficult one, but it may be necessary to get your child the future care they will need. Consult an experienced medical malpractice attorney to discuss whether you may have a claim for malpractice. To learn more about midwives and birth injuries, contact The Fraser Law Firm to schedule a consultation.